News & Resources

The D.C. Circuit's decision last week to nix a U.S. Environmental Protection Agency rule giving biomass power plants a temporary exemption from carbon dioxide emission standards serves as a warning that the federal appeals court will grant the agency little leeway to craft new greenhouse gas rules, experts say.

In a 2-1 ruling, the majority said the government had failed to explain why it was treating biogenic sources of greenhouse gas emissions differently than other sources, and vacated the rule giving biomass power plants a reprieve from carbon dioxide emission standards until July 2014. It rejected the EPA's argument that it needed three years to complete a scientific study and that its "one-step-at-a-time" doctrine allowed it to take a gradual approach toward the Clean Air Act's mandate.

"There have been thorny questions in how you apply GHG standards, whether they're appropriate for CO2, and how do we start phasing them in," Quarles & Brady LLP partner Peter Tomasi told Law360. "At a high level, it only means EPA's job will be more difficult in drafting and finalizing those standards."

That includes the most significant, and controversial, rules on the horizon: the EPA's rules capping greenhouse gas emissions from new and existing power plants.